Town and country planning – Development consent – Alternative site – Material consideration – Claimant challenging decision of defendant secretary of state to grant development consent for link road scheme – Whether defendant unlawfully failing to assess credible alternatives delivering substantially similar benefits with less harm to green belt – Whether alternatives constituting mandatory material considerations – Application dismissed
The claimant applied to challenge a decision by the defendant secretary of state to grant the interested party development consent for the A57 Link Roads Scheme. The scheme had been developed to improve journeys between Manchester and Sheffield. The current A57 around Mottram-in-Longdendale in Tameside suffered from congestion which caused delays and unreliable journey times. The scheme would create two new link roads at the western end of the A57/A628 Trans-Pennine route. Twenty-two hectares of the scheme would be located on green belt land.
The defendant’s decision to grant consent followed a public examination before a panel of two planning inspectors which recommended the grant of consent. The claimant participated fully in the public examination.
The panel reached the view that the scheme would cause harm to the openness of the green belt. The panel gave the harm significant weight in its decision making but concluded that the need for, and considerable public benefits of, the scheme clearly outweighed the adverse effects of the scheme, including its harm to the green belt. The defendant agreed with the panel’s decision concluding that there were “very special circumstances” justifying inappropriate development in the green belt.
The claimant contended, amongst other things, that the defendant unlawfully failed personally to assess whether proposed credible alternatives might deliver substantially similar benefits with less harm to the green belt.
Held: The application was dismissed.
(1) The first principle of relevance concerning alternatives was that, where there were clear planning objections to development upon a particular site, it might well be relevant and necessary to consider whether there was a more appropriate site elsewhere. That was particularly so where the development was bound to have significant adverse effects and where the major argument advanced in support of the application was that the need for the development outweighed the planning disadvantages inherent in it. Whilst it was, generally speaking, exceptional for proposals on alternative sites to be relevant, that principle applied with equal, if not greater force where the alternative suggested related to a different siting within the same application site rather than a different site altogether. In such case, no exceptional circumstances were required to justify taking an alternative proposal into consideration: Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1986] 2 EGLR 185, R (Langley Park School for Girls) v Bromley London Borough Council [2009] EWCA Civ 734; [2009] PLSCS 246; [2010] 1 P & CR 10 and R (on the application of Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2021] EWHC 2161 (Admin); [2021] PLSCS 140 considered.
(2) A distinction had to be drawn between two categories of legal error: (i) where it was said that the decision-maker erred by taking alternatives into account; and (ii) where it was said that he had erred by failing to take them into account. In the second category an error of law could not arise unless alternatives amounted to a mandatory material consideration.
There was no “one size fits all”. Whether there was a need to consider the possibility of avoiding or reducing the planning harm caused by a particular proposal, by considering alternative schemes, was a matter of planning judgment for the decision maker. The court would not interfere with matters of planning judgment other than on legitimate public law grounds: R (on the application of Friends of the Earth) v Secretary of State for Transport [2020] UKSC 52; [2021] EGLR 5 considered.
(3) It was apparent that the panel approached the alternatives proposed as a matter of planning judgment, giving them brief consideration but focusing its consideration on whether a proportionate options appraisal had been carried out by the applicant for development consent, in accordance with paragraph 4.27 of the Policy Statement on National Networks. The defendant agreed with the panel’s approach and conclusion. The approach taken demonstrated no error of law.
Both the panel and the defendant accepted that the scheme constituted inappropriate development in the green belt by reason of the harm that would be caused to the openness of the green belt and gave this substantial weight in the assessment of whether very special circumstances existed so as to permit inappropriate development in the green belt.
(4) The principle that it might well be relevant and indeed necessary to consider whether there was a more appropriate site elsewhere was of potential application given the circumstances of the present case. The category of legal error relied on was said to be that the defendant erred by failing to take account of the alternatives advanced by the claimant. An error of law could not arise in that regard unless, on the facts, the alternatives advanced by the claimant were so obviously material, that it was irrational for the defendant to fail to consider them: Langley Park distinguished.
The reasons advanced by the claimant did not justify a conclusion that the alternatives proposed were mandatory material consideration. The same conclusion was reached whether the reasons were considered individually or cumulatively.
(5) The alternatives advanced by the claimant were not mandatory material considerations such that it was unlawful for the defendant to rely on their assessment by the interested party in its options appraisal of the scheme. The present case was not analogous with the wholly exceptional set of circumstances in R (Save Stonehenge World Heritage Site) v Secretary of State for Transport [2021] EWHC 2161 (Admin). There was no general principle of law that the existence of alternative sites inevitably became a mandatory material consideration in any case where a proposed development would cause adverse effects, but those were held to be outweighed by its beneficial effects. Neither the applicant for development consent or the decision maker relied on the absence of alternatives to justify the scheme. The credibility of the alternatives advanced was in dispute: Save Stonehenge and R (Substation Action Save East Suffolk Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 3177 (Admin); [2022] PLSCS 209; [2022] PTSR 74 considered.
David Wolfe KC and Toby Fisher (instructed by Richard Buxton Solicitors) appeared for the claimant; James Strachan KC and Rose Grogan (instructed by Government Legal Department) appeared for the defendant; Jenny Wigley KC (instructed by Gowling WLG (UK) LLP) appeared for the interested party.
Eileen O’Grady, barrister
